{"id":202573,"date":"1997-09-05T00:00:00","date_gmt":"1997-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-desai-associates-vs-cit-on-5-september-1997"},"modified":"2016-09-18T00:57:50","modified_gmt":"2016-09-17T19:27:50","slug":"suresh-desai-associates-vs-cit-on-5-september-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-desai-associates-vs-cit-on-5-september-1997","title":{"rendered":"Suresh Desai & Associates vs Cit on 5 September, 1997"},"content":{"rendered":"
Delhi High Court<\/div>\n
Suresh Desai & Associates vs Cit on 5 September, 1997<\/div>\n
Equivalent citations: 1998 IIAD Delhi 578, 71 (1998) DLT 772, 1998 (44) DRJ 87<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R Lahoti, J Mehra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 R.C. Lahoti, J.  <\/p>\n
 1.     This  is a petition under Section 256(2) of the Income-tax  Act,  1961 filed  on  30.11.1993 seeking mandamus to the ITAT New Delhi to draw  up  a
\nstatement  of case and refer the questions stated in the petition  for  the opinion of the High Court.\n<\/p>\n
 2.   It is not necessary to state the questions of law on which the  reference  is  being sought for looking at the nature of  preliminary  objection raised  by the respondent to the maintainability of the petition, which  is being disposed of by this order. The relevant facts only need be noticed in brief.  3.   The petitioner-assessee was a firm engaged in the business  of production of motion pictures a Bombay. During the assessment year  1980-81 the  firm had produced a film by the name of SUHAAG. The “muharat” was rformed  on 12.1.1996. The production of the film was completed in or  about October,  1979.The  film was released on 16.11.1979. A search  and  seizure action  conducted by the Directorate of Enforcement was carried out at  the business  premises of the assessee firm and its partners etc under  Section 132  of the Income-tax Act somewhere at the end of 1979. The  original  assessment  order was passed on 25.3.1983 by the Assessing Officer at  Bombay who.  The assessee filed an appeal before the CIT ( Appeals) Bombay who  by order dated 3.10.1983, directed the assessing officer to afford the  assessee  an opportunity of hearing and re-complete the assessment in  accordance with law. The Deputy Commissioner (Assessment) Bombay the passed the  order of assessment. An appeal was preferred which was heard and decided by CIT ( Appeals) Bombay on 19.12.1988. The assessee and the Revenue, both preferred appeals to the ITAT Delhi which were disposed of by order dated  29.10.1992 by ITAT, Delhi Bench, New Delhi.\n<\/p>\n
 4.   The  assessee  filed an application under Section 256(1)  of  the  Act setting out a few questions and seeking reference to the High Court,  which application  was  also dismissed by ITAT Delhi forming an opinion  that  no referable question of law arose out of the order of the Tribunal.\n<\/p>\n
 5.   In the above said background of facts the present application has  been filed before the High Court of Delhi at New Delhi.\n<\/p>\n
 6.   A  preliminary  objection to maintainability of application  has  been raised  on behalf of the Revenue submitting that the application  does  not lie  before Delhi High Court. If at all, the application should  have  been filed before the High Court of Bombay, i.e the High Court exercising jurisdiction  over  the assessing authority having jurisdiction  to  assess  the
\nassessee  at the relevant time.\n<\/p>\n
7. On behalf of the petitioner, it is  submitted that the appellate order of the Tribunal wherefrom the questions  of law  are being said to arise having been passed by the Tribunal  at  Delhi, reference application filed at New Delhi is competent. It was also  submitted  that addition the jurisdiction of the High Court of Delhi  is  spelled out  additionally  by  the  fact  that  on  8-12-92  the  Commissioner   of Income-tax-VIII has in exercise of the powers conferred by sub-section  (1) of  Section 127 of the Act, passed an order whereby the powers of  the  assessing officer qua the assessee have been conferred on an assessing  officer at Delhi.\n<\/p>\n
8. In our opinion, the question of territorial  jurisdiction of the  High  Court who would be competent to hear a reference  under  Section 256(1)  of the Act or an application under Section 256(2) of the Act is  no
\nmore res integra in view of the law settled by a Division Bench decision of this Court in the case of SETH BANARSI DASS GUPTA Vs. CIT( Central)  (1978) 113  ITR 817. In that case, the assessee a Hindu Undivided  Family  resided and carried on business in Meerut.The assessment orders were passed by  the Income-tax Officer at Meerut and appeals therefrom were heard by the Appellate Assistant Commissioner at Meerut. Further appeals were heard by  Delhi Bench  of ITAT. Later, a reference under Section 256 was made to  the  High
\nCourt of Delhi. A preliminary objection to the competence of the High Court of Delhi by reference to its territorial jurisdiction was raised on  behalf of  the Revenue which was upheld by the Division Bench. It was pointed  out that  there were no statutory provisions determining the proper High  Court to  which the reference should be made by the Tribunal. The Division  Bench
\nhaving analysed several provisions of Income-tax Act, held that the  reference  was maintainable only before the Allahabad High Court and not  before High  Court of Delhi. A perusal of the judgment, extensively  dealing  with all the relevant aspects, reveals the following reasonings given and observations made by the Division Bench :-1) Section 64 which has relevance  for
\ndetermining  jurisdiction of assessing officer by reference to place  where assessee carries on business, profession or vocation, has no relevance  for determining jurisdiction of appellate authority\/tribunal;ii) In considering the question as to the High Court to which a bench having jurisdiction over more  than one State has to make a reference, the basis adopted for  determining  the jurisdiction of the Bench of the Tribunal would be more  appropriate  than  the  basis adopted for determining the  jurisdiction  of  the ITO;iii) It would be quite appropriate for the Bench to refer the  question of  law  arising out of its own order in appeal to the High  Court  of  the State  from which the appeal had come.iv) The suggestion that the place  of the  location  of  the Bench which heard and determines an  appeal  may  be adopted as the basis for the determination of the jurisdiction of the  High Court to which question of law arising out of the order should be  referred cannot  be  accepted. Reference cannot be made to the High Court  of  Delhi merely  because  Delhi Bench of Tribunal situated  within  the  territorial jurisdiction of High Court heard the appeal.\n<\/p>\n
9.  The above said view  has been followed and reiterated again by a Division Bench of High Court of Delhi in Birla  Cotton & Spg Mills Vs. CIT Rajasthan 123 ITR 354. It has  been  held
\nthat  the  Court to which the reference should be made would be  the  court having jurisdiction over the territory in which the office of the assessing officer was situate.\n<\/p>\n
 10.  Not only we are bound to follow the view taken by two Division Benches of  High Court of Delhi referred to hereinabove, which have held the  field for  about two decades, we too find ourselves in entire agreement with  the view so taken.\n<\/p>\n
 11.  There is yet another reason why the above said view should prevail. The territorial  jurisdiction  of the ITAT extends over several  States  though each  of such States has its own High Court. There is unanimity of  opinion amongst different High Courts that decisions of the High Court are  binding on  the subordinate courts and authorities or Tribunal under  its  superintendence throughout the territory in relation to which it exercises  jurisdiction.  The  binding  authority does not extend  beyond  its  territorial jurisdiction. The decision of one High Court is not a binding precedent for another  High  Court  or for courts or Tribunals  outside  its  territorial jurisdiction.  (  See- CIT Vs. Thana Electricity Supply Ltd,  206  ITR  727 Bombay;  CIT Vs. Ved Parkash, 178 ITR 332 Pb & Har; State of A.P. Vs.  CTO, 169 ITR 564 A.P.; CIT Vs. Mohan Lal Kansal,114 ITR 583 P&H and Benoy  Kumar Vs. I.T Commr .    In the case of CIT Vs. Thana Electricity Supply Ltd ( supra), the Division Bench of Bombay High Court has held:\n<\/p>\n
       “A  conjoint  reading of sections 257 and 260 of  the  Income-tax
\n     Act,  1961,  shows that the Act itself  contemplates  independent decisions of various High Courts on the question of law  referred to them. It has visualised the possibility of conflict of opinion between different High Courts on the same question of law and has also made specific provision to take care of such a situation  in suitable  cases. In fact, in the light of the clear  language  of section 260 of the Act, every High Court is required to give  its own  opinion on a particular question of law. It should not  follow, as a matter of course, only with a view to achieve uniformity in the matter of interpretation, the decision of another  High Court,  if  such decision is contrary to its  own  opinion.  Such action  will be contrary to the clear mandate of section  260  of the  Act.  It will amount to abdication of its duty by  the  High Court to give “its decision” on the point of law referred to it.”\n<\/p>\n
 13.  In CIT Vs. Ved Parkash ( supra) the Division Bench of Punjab & Haryana High Court have held :\n<\/p>\n
      “as the decision of a High Court is binding only upon the authorities,  Tribunals and Courts functioning within  its  territorial jurisdiction,  no Tribunal beyond such jurisdiction can treat  or hold as constitutionally invalid any provision of the  Income-tax Act  solely for the reason that the High Court of  another  State may have declared the said provision to be ultra vires. To  grant such a power to the Tribunal or even to a High Court, in a reference  under Section 256 of the Income-tax Act would again  amount  to  conferring jurisdiction upon them to pronounce upon the constitutional validly  of the provisions of the  statute  creating them,  which would clearly be contrary to the well-settled  position in law.”\n<\/p>\n
      “unless  and  until the Supreme Court or the High  Court  of  the state  in  question, under Article 226 of the  Constitution,  declares a provision of the Act to be ultra vires, it must be taken o be constitutionally valid and treated as h.”\n<\/p>\n
 14.  On  account  of the above said doctrine of precedents and the  rule  of binding efficacy of the law laid down by the High Court within its territorial jurisdiction. The questions of law arising for decision in a reference should  by determined by the High Court which exercises territorial  jurisdiction  over  the situs of the assessing officer Else it would  result  in serious  anomalies. An assessee affected by an assessment order  at  Bombay may  invoke the jurisdiction of Delhi High Court to take advantage  of  the law laid down by it and suited to him and thus get rid of the law laid down to  the  contrary by the High Court of Bombay not suited to  the  assessee. This cannot be allowed.\n<\/p>\n
 15.  We  are,  therefore,  clearly of the opinion that in  so  far  as  the present  case is concerned, the jurisdiction under sub section (1) and  (2) of  Section 256 vests in the High Court of Bombay and certainly not in  the
\nHigh Court of Delhi.\n<\/p>\n
 16.  We  find  no merit in the submission of the learned  counsel  for  the petitioner-assessee  that by subsequent event the High Court of  Delhi  acquires jurisdictional competence to hear the petition.\n<\/p>\n
 17.  As  already stated the case in hand arises out of the  assessment-year 1980-81. It appears that for some assessment years (other than the  assessment  year  1980-81)  the assessment records of the  petitioner  have  been ordered  to be transferred from Bombay to Delhi sometime in the  year  1988 which were pending at Bombay at that time. So far as the assessment for the year  1980-81 is concerned, it had stood concluded. The said  transfer  has taken  place under Section 127(1) of the Act. It is not that the  jurisdiction  to make assessment in respect of matters arising at Bombay  has  been conferred  or transferred to Delhi by reference to territory or persons  or classes  of  persons or income or class of income or cases  or  classes  of cases  as contemplated by Section 120 of the Act. Such transfer of  assessment cases for a few years other than the year in question has no relevance and  no  bearing on the territorial jurisdictional competence of  the  High Court of Delhi to hear the present application under Section 256(2) of  the Act.\n<\/p>\n
 18.  For the foregoing reasons the petition is dismissed though without any order as to the costs. Needless to say the petitioner’s right to invoke the jurisdiction of the competent High Court by filing an appropriate  application  under Section 256(2) is not taken away by this  dismissal.1.  Precedents-  Rulings of High Court- are binding within the territory over  which the  High  Court exercises jurisdiction. decisions of the  High  Court  are binding  on  the subordinate courts and authorities or Tribunal  under  its superintendence throughout the territory in relation to which it  exercises jurisdiction. The binding authority does not extend beyond its  territorial jurisdiction. The decision of one High Court is not a binding precedent for another  High  Court  or for courts or Tribunals  outside  its  territorial jurisdiction.  (para 11) 2. Income-tax Act, 1961- S. 256-  Jurisdiction  of High Court to hear reference depends on situs of assessing officer-place of seat of Tribunal’s Bench immaterial.The questions of law arising for  decision in a reference should by determined by the High Court which  exercises territorial  jurisdiction over the situs of the assessing officer  Else  it would  result in serious anomalies. An assessee affected by  an  assessment order  at  Bombay may invoke the jurisdiction of Delhi High Court  to  take advantage of the law laid down by it and suited to him and thus get rid  of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This cannot be allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Suresh Desai & Associates vs Cit on 5 September, 1997 Equivalent citations: 1998 IIAD Delhi 578, 71 (1998) DLT 772, 1998 (44) DRJ 87 Author: R Lahoti Bench: R Lahoti, J Mehra JUDGMENT R.C. Lahoti, J. 1. This is a petition under Section 256(2) of the Income-tax Act, 1961 filed on 30.11.1993 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-202573","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSuresh Desai & Associates vs Cit on 5 September, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-desai-associates-vs-cit-on-5-september-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh Desai & Associates vs Cit on 5 September, 1997 - 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